Pervasively Unconstitutional

In an important decision handed down last week, the 10th Circuit Court of Appeals rebuked Colorado for its handling of a number of state scholarships programs. The court found that the state unconstitutionally discriminated against students attending Colorado Christian University (CCU) and Naropa University, denying them aid because they were allegedly pervasively sectarian institutions.

The programs at issue were created by the state in the early 1980s in an effort to conform to the then-prevailing Supreme Court First Amendment doctrine. Colorado lawmakers wanted their scholarship programs to be as inclusive as they thought the separationist Burger Court would permit and so attempted to distinguish between merely sectarian universities, like the Jesuit-run Regis University and the Methodist-affiliated University of Denver, and pervasively sectarian places, like the nondenominational evangelical CCU and Buddhist Naropa.

Writing for the unanimous appellate panel, Judge Michael McConnell (a distinguished scholar of the First Amendment religion clauses and sometime First Things contributor) argues that, however well-intentioned the states efforts were, they have produced a result radically at odds not only with the more accommodationist line taken by the Rehnquist and Roberts Courts but with a series of religious liberty cases that go back much further.

Particularly problematic is the term pervasively sectarian, used by the Burger Court to describe denominational¯above all, Roman Catholic¯elementary and secondary schools that were, as a consequence, generally ineligible for public support. In the first place, the words themselves portray a certain anti-religious (and especially anti-Catholic) animus. Judge McConnell is careful not to impute that animus to the Colorado legislature, which, as I note above, was just doing what it could within the confines of a needlessly restrictive doctrine to provide any aid to students attending religious colleges and universities.

Unfortunately, those efforts put the Colorado government in the business not only of closely scrutinizing religious doctrine and institutions but also of discriminating between denominations and institutions on the basis of their relative sectarianism. Its hard to imagine two activities more at odds with the values inherent in the First Amendment religion clauses. (Well, not really: there are religious tests for office-holding, not to mention persecution, though Colorado was surely approaching the former in conditioning eligibility for student aid on the character of an institutions professed religiosity.)

One example of the states intrusive inspection of CCU stands out. Among the six features of an institution that the law employed to determine an acceptable standard of sectarianism is this one: There are no required courses in religion or theology that tend to indoctrinate or proselytize. State officials thus scrutinized the syllabi of CCU theology courses and concluded that they indeed tended to indoctrinate or proselytize. Judge McConnell characterized the states practices precisely:

To decide that these syllabi were likely to convince the students of religious truths, the [Colorado] Commission [on Higher Education] had to decide how religious beliefs are derived and discern the boundary between religious faith and academic theological beliefs . . . .

The line drawn by the Colorado statute, between indoctrination and mere education, is highly subjective and susceptible to abuse. Educators impart information and perspectives to students because they regard them as true or valuable. Whether an outsider will deem their efforts to be indoctrination or mere education depends as much on the observers point of view as on any objective evaluation of the educational activity . . . . Many courses in secular universities are regarded by their critics as excessively indoctrinating, and are as vehemently defended by those who think the content is beneficial. Such disagreements are to be expected in a diverse society. But when the beholder is the State, what is beheld is the exercise of religion, and what is at stake is the right of students to receive the equal benefits of public support for higher education, the Constitution interposes its protection. The First Amendment does not permit government officials to sit as judges of the indoctrination quotient of theology classes.

As Judge McConnell notes, a long line of Supreme Court decisions forbids this kind of state scrutiny. And rightly so.

The consequence of this scrutiny is equally unconstitutional, for it leads state officials¯motivated by questionable theological judgments¯to discriminate between acceptable and unacceptable recipients of state assistance. As Judge McConnell notes, if there is any bedrock of common understanding of the First Amendment¯shared by separationists and accommodationists alike¯it is that government may not discriminate among religions in this way.

Of course, its possible to argue that Colorado blundered into this thicket by straying off the path of strict separation. Had the state not sought to aid students attending institutions that had even a whiff of religion about them, it would not have gone into the business of scrutinizing or discriminating.

No one disputes that states can at least sometimes choose that easy way out. But Judge McConnell cautions that discriminating against religion in the provision of government aid is just as fraught with constitutional difficulties as discriminating among religions. And he reminds us that the Supreme Court has long recognized a so-called play in the joints of the First Amendment religion clauses: Governments have some leeway in accommodating religion before they run afoul of the Establishment Clause and some leeway in refusing accommodations before running afoul of the Free Exercise clause.

The easy way out is, however, no substitute for the hard work of judging how an unavoidably activist state relates to and cooperates with the churches and other religious organizations that themselves are important providers of educational and social services. Those who pretend that its easy¯like the State of Colorado and its supporters (among them, the ACLU, Americans United for Separation of Church and State, and People for the American Way)¯do religious liberty an immense disservice, promoting secularism at the expense of religions place in civil society.

We ought to be thankful public servants like Judge McConnell have been afforded the opportunity to remind us of our complicated and difficult responsibilities, not just from the pages of First Things or law reviews, but from the federal bench. As editor of the Harvard Law Review , Barack Obama treated then-Professor McConnells views with noteworthy fairness. Its reasonable to ask whether Colorado Christian University would fare as well before a bench full of Obama appointees. The aforementioned list of amici in this case leaves room for doubt.

Joseph M. Knippenberg is Professor of Politics at Oglethorpe University, Adjunct Fellow of the Ashbrook Center for Public Affairs (where he contributes to the No Left Turns blog), and contributing editor of The City , published by Houston Baptist University.